Citation NR: 9612496
Decision Date: 05/02/96 Archive Date: 05/16/96
DOCKET NO. 94-49 170 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Manila,
Philippines
THE ISSUE
Whether the appellant is eligible for Department of Veterans
Affairs (VA) disability benefits.
ATTORNEY FOR THE BOARD
Marcy L. Rogoff, Associate Counsel
INTRODUCTION
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from a June 1994 administrative decision of
the Manila, Philippines, Regional Office (RO), which denied
basic eligibility for disability benefits.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends, in essence, that he is eligible for
VA benefits since he had active guerrilla service during
World War II. He alleges that he was a World War II
“veteran” and is eligible for VA benefits.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the appellant does not have
basic eligibility for VA benefits.
FINDING OF FACT
The National Personnel Records Center certified that the
appellant had no service as a member of the Philippine
Commonwealth Army, including the recognized guerrillas, in
the service of the United States Armed Forces.
CONCLUSION OF LAW
The requirements of basic eligibility for VA benefits based
on qualifying military service of the appellant have not been
met. 38 U.S.C.A. §§ 101(2), 107(a), (b) (West 1991); 38
C.F.R. §§ 3.1(d)(2), 3.8, 3.203 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, VA must determine whether or not the appellant was
a “veteran” for VA purposes. The term "veteran" means a
person who served in the active military, naval, or air
service, and who was discharged or released therefrom under
conditions other than dishonorable. 38 U.S.C.A. § 101(2)
(West 1991). The United States Court of Veterans Appeals has
pointed out that “[c]ertain service in the organized forces
of the Government of the Commonwealth of the Philippines or
in the Philippine Scouts is deemed by operation of law not to
be qualifying active service. See 38 U.S.C. § 107; Dela Pena
v. Derwinski, 2 Vet.App. 80 (1992). Pursuant to 38 U.S.C.
§ 501(a)(1), the Secretary has established by regulation
requirements for verifying recognized service in the United
States Armed Forces for purposes of eligibility to VA
benefits. See 38 C.F.R. § 3.203 (1995).” Sarmiento v.
Brown, 7 Vet.App. 80 (1994).
For the purpose of establishing entitlement to VA benefits,
VA may accept evidence of service submitted by the claimant .
. . without verification from the appropriate service
department if the evidence (1) is a document issued by a
United States service department; (2) the document contains
the necessary information regarding length, time and
character of service, and (3) in the opinion of the VA the
document is genuine and the information contained in it is
accurate. . . . However, when the evidence submitted by the
claimant does not meet the above-described requirements, the
VA shall request verification of service from the appropriate
service department. 38 C.F.R. § 3.203 (1995).
In the present case, the appellant applied for compensation
for “sickness [he] suffered during active duty as a
recognized guerrilla during WWII.” The appellant submitted
a document from the Philippine Veterans Affairs Office dated
in July 1990, showing that he served with Squadron #60, 1st
platoon, 2nd squad. He indicated that he served as a
guerrilla from November 1942 to December 1945. The RO denied
the appellant’s claim for disability benefits because his
name did not appear on its roster of recognized guerrillas.
In his substantive appeal, the appellant indicated that he
served under the alias, Pablo David, to hide from the
Japanese. He requested that the RO request verification of
his service using his alias. In January 1995, the RO
requested verification of service dates for the appellant
under his alias, Pablo David. In April 1995, the National
Personnel Records Center indicated that no change was
warranted from the prior negative reports as the appellant,
under both names, had no service as a member of the
Philippine Commonwealth Army, including the recognized
guerrillas, in the service of the United States Armed Forces.
Findings by the service department verifying a person’s
service “are binding on the VA for purposes of establishing
service in the U.S. Armed Forces.” Duro v. Derwinski, 2
Vet.App. 530, 532 (1992); see also Dacoron v. Brown, 4
Vet.App. 115, 120 (1993).
There does not appear to be any additional evidence which
would in our view warrant VA again asking the service
department to verify the alleged service. Sarmiento v.
Brown, 7 Vet.App. 80 (1994). The claim of entitlement to
eligibility for VA benefits based on recognized military
service of the appellant lacks legal merit and must therefore
be denied. Sabonis v. Brown, 6 Vet.App. 426 (1994).
ORDER
Eligibility for VA benefits is not established, and the
appeal is denied.
GARY L. GICK
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
- 2 -